Public Contracts & Procurement
The Hawkins Delafield & Wood LLP Public Contracts Group represents state and local governments in connection with procurements and contract negotiations for public works projects, contract management services and public-private partnerships (PPP or P3). There are nine attorneys in the group. Each specializes full time in the public contracts field. The Public Contracts Group has been in continuous practice at the Firm for over 30 years and is recognized as one of the pre-eminent municipal contract law practices in the country. Our unsurpassed regional and national experience places it in the front rank of professional practitioners in the public contracts field for civil infrastructure projects and public-private partnerships generally.
The Public Contracts Group has successfully concluded transactions in all of the major civil infrastructure sectors. These include: transportation, public power, civic facilities, drinking water, wastewater, combined water and wastewater, and solid waste. Representative engagements in each of these sectors are briefly described below. We also have extensive experience with mixed-use real estate development projects conducted under municipal sponsorship or with substantial municipal involvement.
Our practice is national in scope, with more than 200 public-private partnership and alternative project delivery projects in 25 states and several overseas jurisdictions. The contracts resulting from these procurements have had terms ranging from 5 to 35 years, and values between $5 million and $4 billion. In the aggregate, the public contracts the Firm has negotiated have a value exceeding $25 billion. The Firm's public contracts clients include major cities, counties, and public agencies and authorities, as well as smaller and medium-sized towns, boroughs, and special districts.
The experience of the Public Contracts Group across a broad range of infrastructure sectors and governmental project sponsors enables us to offer highly seasoned, expert counsel to our municipal clients on all of the critical aspects of public works contracting and procurement. The core of our practice is representing state and local governments in public-private partnership, public infrastructure, public contract, public finance and concession matters. The Firm is familiar with the legal and business factors that must be addressed in order to implement each type of civil infrastructure and municipal utility project, including related real estate, environmental, energy, contract, finance, securities, tax and litigation matters. We have counseled our governmental clients on all the issues related to financing and contract structures, performance guarantees, pricing or rate setting clauses, covenants, defaults and other risks and responsibilities inherent in these transactions in multiple contexts. Hawkins attributes its market leadership position to a flexible, determined and results-oriented approach grounded in a strong record of experience and achievement. A large majority of the transactions and programs in which Hawkins has served as special counsel have actually been closed and implemented and are currently operating, serving the public purpose objectives of the sponsoring governments. This record of success in making projects and transactions happen, rather than merely conceptualized and never implemented, is foremost among the qualifications that we believe best distinguishes Hawkins.
Our services as counsel normally consist of assisting our municipal clients and their advisors in assessing the legal and business alternatives of various potential project implementation, contracting and financing structures and then, if a decision to proceed is reached, protecting the public client’s interests in the procurement and negotiating process and legally effectuating the project. We typically help structure the transaction, draft the project RFQ and RFP, evaluate the proposals, help conduct simultaneous negotiations as appropriate, draft and negotiate the relevant contracts, and make sure the contracts do not jeopardize the tax exemption of any bonds issued to finance the assets. Because we are thoroughly familiar with how these transactions are actually concluded, we can bring critically important and seasoned perspectives to the planning and procurement phases of potential projects on a very cost effective basis.
In more than 35 major P3 transactions on which we served or serve as special counsel, private financing of new or existing public infrastructure assets using private equity and either taxable or tax-exempt debt was utilized. The large majority of the P3 projects in which Hawkins has served as special counsel have involved private contract operation and management of civil infrastructure, involving either existing governmental assets or newly built or upgraded governmental assets. The savings obtained in many such outsourcing transactions were “monetized” using a variety of approaches.
Our central involvement in a wide range of public-private partnerships has also given us the background necessary to offer clients highly practical advice as to planning, procurement, structuring, business climate, management and timeline issues. Hawkins assists in addressing the public purpose issues that often arise in the context of negotiating P3 contracts, protecting the public interest and effectuating public purpose goals expertly and efficiently. Hawkins believes that public purpose considerations are vital to the determination to undertake any form of public-private partnership. Hawkins, in its P3 practice, has significant experience with long-term contracting, in which such considerations are taken into account and the continuing public interest in the assets (and the public service provided by the private firm) are appropriately protected. Service standards, responsibility for ongoing capital maintenance and capital modifications, and rights of termination for public convenience are of particular concern in long-term partnerships.
As an active participant and leader in the public contracts and procurement field, the Public Contracts Group has excellent relationships with the management, engineering and financial consulting firms regularly advising municipal governments on alternative project delivery matters. The Firm has also negotiated contracts with a large number of the major construction and operating contractors that regularly submit proposals and undertake public-private civil infrastructure projects.
Hawkins represents only municipal governments and other public sector entities in public contract matters, not companies, and thus is free from potential conflicts of interest with private sector entities. The firm, under a long-standing policy established in order to completely avoid such potential conflicts, does not represent or advise any construction company, engineering firm, operating services company, or any other private entity that would propose to design, build, finance or operate an infrastructure project. Accordingly, Hawkins will never face the prospect, when serving as special counsel for a governmental client, of reviewing a proposal from or negotiating a contract with a private company that we may have represented in the past and may hope to represent again in the future.
A few of our more noteworthy engagements are described briefly below.
Federal Highway Administration - TIFIA.
We serve on an ongoing basis as special counsel to the Federal Highway Administration in connection with its Transportation Infrastructure Finance and Innovation Act (TIFIA) program, which provides funding assistance for highway public-private partnerships. On behalf of the FHWA, we review and comment upon the contract and financing documentation prepared by state and regional transportation agencies for the development of new highways and other transportation facilities under alternative project delivery methods such as design-build or private toll financings. In that capacity we have assisted FHWA in closing two of the first transactions under TIFIA for the Washington Metro Area Transit Authority in the District of Columbia and the Tren Urbano project in Puerto Rico. We have also represented FHWA on a third transaction, construction of a new span for the Tacoma Narrows Bridge in the State of Washington.
Arizona Department of Transportation
Hawkins worked extensively with ADOT as project counsel on MetroRoad, the development of the proposed widening of the Superstition Freeway. The project involved the formation of a 63-20 non-profit corporation for tax-exempt financing purposes, the grant of a concession to the development team, the construction of the additional lanes on a design-build-operate basis, and toll-based financing of the new assets.
Republic of Poland: Transportation Ministry and Finance Ministry
Hawkins represented the Transportation Ministry of the Republic of Poland as procurement and contract counsel in the development of the new A-2 highway in southern Poland, which is now constructed and has been in successful operation for several years. We assisted in the strategic conceptualization of the project under a new national procurement law and in the preparation of the RFP and proposal review, and drafted and negotiated the DBFO concession with the selected Polish-French-German concessionaire. After the concession was executed, Hawkins represented the Finance Ministry as a major lender of subordinate debt in the private financing of the project.
City of San Diego, California
Hawkins represented the City of San Diego in the development of the proposed Brown Field Cargo Airport expansion. Our services included proposal review, lease and service contract drafting and negotiations with the selected development team. The transaction involved private development of runways and terminals and of related commercial use property; private equity and financing; and extensive feasibility analysis.
New York City Metropolitan Transportation Authority
Our firm served as project counsel in connection with the MTA’s procurement of a new rail signal system to the private proposer on a design-build-operate basis. The system was installed and operated on a demonstration basis for possible system-wide use by MTA. HD&W worked extensively on RFP, proposal review and contract development matters.
Washington, D.C. Water and Sewer Authority (DC WASA).
DC WASA is installing a combined-heat-and-power facility at its 260 mgd Blue Plains water treatment plant, one of the largest in the United States. Hawkins is serving as special counsel in the procurement of the new million combined-heat-and-power facility on a design-build-operate basis. We assisted in the procurement process and drafted and negotiated the service contract, which has a term of 15 to 20 years following acceptance of the facility and includes performance guarantees associated with steam and electrical power production, among others. The project is currently under construction and is expected to reduce DC Water's greenhouse gas emissions by approximately 40 percent, as well as reduce the risk of increased disposal costs and provide a hedge against increases in future power costs.
Monmouth County, N.J.
Hawkins has served as energy counsel and special counsel to the County in connection with several energy and renewable energy projects, including solar, and landfill gas-to-energy, cogeneration projects and the third party supply of electricity and natural gas. The firm’s services have included leading competitive procurements, evaluating proposals and recommending the most advantageous proposer, drafting power purchase agreements, and natural gas energy supply agreements and other related transaction agreements.
Camden County Municipal Utilities Authority
Hawkins has served as special counsel to the Authority in connection with the procurement of a solar energy project where the firm’s services included evaluating proposals and negotiating a power purchase agreement with the most advantageous proposer. In addition, Hawkins is currently assisting the Authority with a new renewable energy procurement for multiple projects which may include solar, geothermal or combined heat and power (CHP) technology. The firm’s services in connection with this procurement include drafting procurement documents, preparing a draft power purchase agreement, evaluating proposals and recommending the most advantageous proposer or proposers.
State of California
Hawkins played a major role in assisting the State of California in the California power crisis of 2001-2002. Representing the California Department of Water Resources, the firm has assisted the State in drafting authorizing legislation empowering the Department to purchase power to meet the State’s shortage. In addition, we represented the Department in negotiating an initial portfolio of over $42 billion of power purchase agreements, including firm energy and capacity based and tolling agreements, and agreements for demand reduction and ancillary services. Hawkins is currently assisting the Department in renegotiating many of its power purchase agreements, and has also represented the Department in connection with gas purchase, transmission, storage and hedging agreements entered into in connection with the Department’s tolling agreements. Our representation also includes a wide range of market related matters, including those involving the California Independent System Operator and the transition of the power market back to the State’s investor-owned utilities.
Long Island Power Authority
Hawkins represented the Long Island Power Authority in the acquisition of the electric generation and distribution assets of the Long Island Lighting Company. Upon the acquisition of such assets by LIPA, LIPA entered into various operating agreements with LILCO, whereby LILCO, through its subsidiaries, operated LIPA’s newly acquired electric assets. Hawkins was instrumental in structuring, drafting and negotiating the operating agreements, and other related transaction agreements. We also served as bond counsel to LIPA in its issuance of $6.5 billion of municipal bonds to acquire LILCO’s electric assets.
Judicial Council of the State of California, Administrative Office of the Courts – Performance-Based Infrastructure Program.
Hawkins represented the State of California as special counsel to the Judicial Council’s Administrative Office of the Courts (AOC) in connection with the procurement of new court facilities on an alternative project delivery basis. This procurement involved the use of public-private partnerships (PPP or P3) in which a private firm design, builds, finances and operates (DBFO) the new facilities. This project was a groundbreaking P3 project for the State, and a landmark event in P3 development of public infrastructure in the United States. In 2011, the project won a “Deal of the Year” award from the Daily Bond Buyer. Hawkins drafted and negotiated the DBFO service contract and participated centrally in the RFP, evaluation and selection process as the State’s lead counsel. This project is part of a major initiative by the State in new forms of public works contracting and Hawkins played a key legal role in counseling the State’s judicial, legislative and executive branches as to statutory, procedural and business issues that have arisen in its successful implementation.
Metropolitan Government of Nashville and Davidson County
Hawkins represented the Metropolitan Government of Nashville and Davidson County as project counsel and finance counsel in connection with development of a natural gas fired district-wide heating and cooling system in downtown Nashville. As part of our engagement, we assisted in the preparation of an RFP for a private company to design and build a state-of-the-art heating and cooling system, and to operate it for a period of 30 years. We also negotiated a fuel procurement contract.
Gallery Place and Mandarin Hotel Projects, Washington, D.C.
Hawkins acted as special transaction counsel to the District of Columbia in connection with two major mixed-use redevelopment projects. In order to establish parameters for the District’s funding of the subsidy and to ensure that the projects were completed on time and operated in the manner upon which the subsidy was based, Hawkins negotiated a development agreement between the developer and the District, as well as inter-party arrangements with the developers’ private equity investors and their institutional lenders.
Battery Park City
Hawkins participated in the planning of Battery Park City, one of the nation’s most successful government-sponsored communities, comprised of a 92-acre neighborhood on the southwest tip of Manhattan. From its conception in the 1960s, through numerous financings including its most recent mega-refinancing in 2003, Hawkins has worked side-by-side with representatives of government and private sector developers and developed legal structures that afford the greatest flexibility to private sector developers in terms of financing sources and structures.
San Diego County Water Authority, California
Hawkins represents the Authority as special contract counsel in the development of California’s first major seawater desalination project (50 mgd), structured as a public-private partnership (PPP or P3). The project, to be built in Carlsbad at the site of an existing power plant, will serve to substantially expand San Diego County’s reliable supply of local water sources. The Metropolitan Water District has selected the project for a $250 per acre foot production subsidy. The plant is expected to be implemented under a design-finance-build-operate water supply contract currently being negotiated with the developer.
San Antonio Water System (SAWS)
SAWS is undertaking the first major water project under new legislation in Texas authorizing municipal water utilities to utilize alternative project delivery; a 10-25 mgd brackish groundwater treatment facility and conveyance system. Hawkins serves as special counsel to SAWS for the project. In that capacity, our firm commented extensively on the new legislation, helped structure the water rights agreements and counseled SAWS on various available procurement options. The project will be implemented utilizing the construction-manager-at-risk method of project delivery. Our responsibilities include assistance with the procurement documentation (RFEI, RFQ and RFP), and the development and drafting of the contracts for the project.
Hialeah utilized the design-build-operate contracting method to procure one of the largest brackish groundwater desalination project in Florida. The project is currently under construction and will provide an initial 10 mgd of capacity with an ability to be expanded in phases up to 17.5 mgd. Hawkins serves as special counsel to the City for the transaction and assisted with the development of the RFEI, RFQ and RFP solicitation documents and with the drafting and negotiation of the DBO contract with the successful proposer.
San Diego County Water Authority, California
Hawkins served as special counsel to the San Diego County Water Authority in the development, procurement and negotiation of the design-build-operate contract for the 100 mgd Twin Oaks Valley Water Treatment Plant. The plant was the Authority's first water treatment project, as well as its first project completed on an alternative delivery basis. Twin Oaks, a landmark DBO project in Southern California, is capable of treating State Water Project and Colorado River Aqueduct water in any combination and is one of the largest membrane surface water treatment plants in the world.
Santa Fe, New Mexico
Hawkins served as special counsel to the Buckman Direct Diversion Board, in connection with a design-build project for a new 15 mgd water treatment plant owned jointly by the City of Santa Fe and the County of Santa Fe. The plant, together with an intake structure to divert surface water from the Rio Grande River, transmission lines and pump stations, is currently being operated by the Buckman Direct Diversion Board, having been successfully procured on a design-build basis with extended performance warranties. The BDD project is the first design-build water project in New Mexico.
Hawkins served as the outside legal advisor to the multi-disciplinary study team that completed a seminal, in-depth study of 11 alternative project delivery methods for the proposed 80 mgd Lake Pleasant Water Treatment Plant. We then represented Phoenix as special counsel in the successfully completed design-build-operate procurement for the Lake Pleasant plant, utilizing Arizona's omnibus alternative project delivery legislation. The plant treats Central Arizona Project Colorado River water to enhanced standards and under very high periodic turbidity conditions, serves rapidly developing north Phoenix, and is expandable to 320 mgd.
Washington, D.C. Water and Sewer Authority (DC WASA).
DC WASA is replacing the main process train for biosolids at its 260 mgd Blue Plains water treatment plant, one of the largest in the United States. Hawkins represented DC WASA as special counsel in the review of possible alternative project delivery methods and is serving as special counsel in the procurement of the new $200 million main process train on a design-build basis using the Cambi Thermal hydrolysis pretreatment process. The project is currently under construction and will be the first major installation of the Cambi THP System in the United States and is expected to result in annual residual disposal savings to DC WASA exceeding $15 million.
Pima County, Arizona
Pima County operates a 60 mgd wastewater treatment system serving the Tucsan metropolitan area. Hawkins was part of a multi-disciplinary team advising the County on the development and implementation of its $1 billion capital improvement plan to expand capacity, replace obsolete facilities and meet more stringent regulatory effluent standards. The assessment of available and appropriate alternative project delivery methods and a review of effluent water rights agreements affecting the wastewater system were among the firm’s responsibilities. Hawkins served as special counsel in connection with the procurement and negotiation of a new 30 mgd Roger Road Water Reclamation Campus that was awarded on a design-build-operate basis.
Hawkins serves as special counsel to Spokane County in its procurement of a new regional water reclamation facility on a design-build-operate basis. The facility, currently in operations, is an advanced treatment facility with membrane filtration providing an initial 8 mgd of capacity with an ability to be expanded in phases up to 24 mgd. Hawkins assisted with the development of the RFQ and RFP solicitation documents and with the drafting and negotiation of the DBO contract with the successful proposer.
Hawkins represented the City of Holyoke as special counsel in the development, procurement and negotiation of a 20-year service contract for the operation, maintenance, repair and improvement of the City of Holyoke’s wastewater system. The project included the design and construction of a combined sewer overflow facility and involved elements of both public and private financing.
Cranston, Rhode Island
In Cranston, Hawkins was the principal architect of the first major long- term wastewater project privatization transaction to be approved by the USEPA under Executive Order 12803. The Cranston transaction actually involved eight transactions in one: (1) design-build of capital improvements to the City’s 20 mgd plant; (2) design-build of tertiary treatment facilities; (3) 25-year contract operations; (4) 25-year maintenance, repair and replacement; (5) industrial pre-treatment program; (6) sewer maintenance; (7) contract payment/concession fee to the City; and (8) company financing of the contract payment and system improvements. The Cranston transaction is generally regarded as a landmark event in the wastewater treatment industry.
As special counsel to the Lynn Water and Sewer Commission, Hawkins was a key strategist in the Commission’s groundbreaking “DBO for a CSO” project. This was the first project in the country for which a city conducted a design-build competition, which resulted in a savings in excess of $100 million measured against the cost of conventionally procured improvements. Hawkins drafted and assisted in securing passage of special state enabling legislation for these projects.
Combined Water and Wastewater Projects
Hawkins served as special counsel to the City of Laredo, Texas, drafting and negotiating a 10-year service contract for the private management of the City’s entire water and wastewater utility system (25 mgd), including treatment plants, collection and distribution systems, billing and collection services, and special protections for the non-unionized utility workforce.
Puerto Rico Aqueduct and Sewer Authority (PRASA)
Our firm acted as special counsel to PRASA and the Government Development Bank of Puerto Rico in negotiating an extension of the previous short-term private management contract, advising PRASA on the business terms of the RFP, and drafting the 10-year contract for private management and initial capital improvements to the PRASA System, which serves the entire island.
U.S. Navy (60 Eastern Bases)
Hawkins is serving as special counsel to the Navy in connection with the proposed privatization of water, wastewater, electricity and gas utility systems at 60 naval bases in the eastern U.S. Options under study are asset sales, leases, and management contracts. We are also working with the Navy to develop the transaction forms, contracts and conveyance instruments appropriate to the implementation of the program.
Los Angeles, California (Bureau of Sanitation)
Hawkins currently represents the City of Los Angeles as special counsel in connection with the City’s competitive procurement for a development partner for processing municipal solid waste utilizing alternative technologies, premised on resource recovery. The development partner will finance, design, build, own and operate the resource recovery facility for processing residential municipal solid waste generated in the City at a throughput rate between 200 and 1,000 tons per day that will also provide diversion from the landfill of no less than 80% of the municipal solid waste delivered to the facility. The City is also considering proposals from emerging/experimental technologies that will process less than 200 tons per day as a potential second facility for testing emerging technologies. As special counsel, Hawkins works closely with the City Attorney’s Office in structuring the business deal sought by the City and developing the corresponding contract documents. Hawkins is also responsible for drafting and negotiating the contracts for the projects with the potential private development partners.
New York City
Hawkins currently serves as special counsel to the City of New York Department of Sanitation in connection with the implementation of the City’s multi-project long-term solid waste export program. Hawkins is responsible for drafting and negotiating multiple long-term solid waste processing, transport and disposal contracts for all solid waste generated in New York City and collected by the Department of Sanitation. To maintain competition among the proposers throughout the procurement process, Hawkins is conducting concurrent negotiations with multiple proposers for alternative projects for solid waste generated in the same wasteshed.
New Hanover County, North Carolina
Hawkins is currently assisting the County with a procurement for a private firm to operate and make capital improvements to the County’s waste-to-energy facility. Previously, Hawkins assisted the County in negotiating a service agreement with a private developer to design, build, finance and operate an advanced “dirty” MRF, to mine the County’s landfill, to implement a landfill gas-to-energy project and to operate the County’s landfill and aging waste-to-energy facility. For that engagement, Hawkins was engaged to draft and negotiate the contract documents. The executed contract contained stringent schedule and performance guarantees and appropriate contract security mechanisms. Due to the Company’s inability to obtain financing in a timely manner, the County exercised its clearly stated right to terminate the contract and seized the contract security.
Monmouth County, New Jersey
Hawkins has served as special counsel to the County since the mid-1980s in connection with its solid waste projects. The firm’s services have included procurement advice; RFP development, contract drafting, negotiation, administration and enforcement; flow control and solid waste management plan amendment work; and regulatory filings and approvals.
United States Virgin Islands
Hawkins currently serves as special counsel to the Virgin Islands Waste Management Authority in connection with the development of two 250 ton per day refuse derived fuel resource recovery facilities. Hawkins prepared and negotiated the solid waste disposal service contracts. Additionally, Hawkins assisted the Authority in procuring a DBO contract for a transfer station on St. Croix and for a landfill gas to energy facility on St. Thomas.